Mason v. Whitely — 1 Abb. Pr. 85

Majority

p. 85

MASON a. WHITELY.

New York Superior Court ; Special Term,

December, 1854.

Headnote

Amendment of Complaint.—New Counts.

On amending a complaint when it is done under § 172 of the Code, as a matter of course and of right, a plaintiff may add a new cause of action.

The only restrictions imposed on a plaintiff are, that he shall not amend for the purposes of delay, nor to prevent a trial at a term for which the action is or may be noticed to be tried; and that the cause of action added be one that may properly be united with the one contained in the original complaint.

Motion to strike out an amended complaint.

The original complaint in this action was by husband and wife, for an assault and battery, alleged to have been committed by defendant upon the wife; and was drawn substantially .in the common form. The defendant answered without awaiting the expiration of the twenty days, making a general denial.

Subsequently, and within twenty days from the service of ■the original complaint, the plaintiffs served an amended com

p. 86

plaint. The amendment consisted in the addition of a second count, setting forth that at the time and place of the alleged assault and battery averred in the original complaint, and repeated in the amended one, the defendant also unlawfully restrained the female plaintiff of her liberty, &c.

The defendant moved at special term before the Ch. Justice, to strike out the amended complaint, upon the ground that the amendment amounted to the addition of a new and distinct cause of action.

B. Bkaats, in support of the motion,

cited Hollister a. Livingston, 9 How. Pr. R. 140.

B. V. Abbott, in opposition.

It has been understood in this court, that the plaintiff may thus amend, as of course. (Penny v. Van Cleef, 1 Hall, 165 . Magrath v. Van Wyck, 2 Sandf. 651 . Jeroliman v. Cohen, 1 Duer, 629 .) This practice is upon the whole supported by the practice of the Supreme Court, as adopted since the Code. 1 Mon. Pr. 2 ed. 371. Getty v. Hudson River R. R. Co. 6 How. Pr. R. 269.

The complaint was amended under § 172 of the Code. The motion is made on the ground, that under that section a plaintiff cannot amend, by adding a new and distinct cause of action. Thence is no such restriction imposed by that section of the Code. The only limitation upon the right to amend, on the nature of the amendments to be made is, that it shall not be done for the purpose of delay, nor under such circumstances as to prevent a trial at a “ term for which the cause is, or may, be noticed.” Neither of these objections are alleged to exist. Under the rules and practice of the courts, as they existed prior to the Code, a party, on amending as a matter of course, could add new counts or pleas.

Supreme Court. Rules of 1829. Nos. 20 and 21.

Superior Court. Rules of 1834. No. 33.

New York Com. Pleas. Rules of 1834. Nos. 28 and 29.

The Code allows, on an amendment made under § 172, the insertion of any new causes of action that can properly be-united in a complaint.

The motion must be denied.

(Duer, Campbell and Bosworth, J. J., concurred.)